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Stone cites two cases which marked a liberal turn toward autonomy in the public sphere:

Cohen v. California and Erzodnik v. Jacksonville.¹² In this section, I explain and analyze the decisions in the two cases, asking whether the restrictability framework laid out in these cases accords with Permissive Liberalism (as I established in the previous chapter, Permissive Liberalism is the sole liberal theory which accords with the lowest common denominator of liberal doctrine.)

In 1968, Paul Robert Cohen, a 19-year-old college student, entered a Los Angeles courthouse to testify on behalf of an acquaintance. But Cohen never made it into the courtroom

11 Barnes v. Glen Theatre Inc. 501 U.S. 560 (1991) and Erie v. Pap’s A.M 529 U.S. 277 (2000.)

12 Stone, Sex and the Constitution, 315-317; Erznoznik v. City of Jacksonville 422 U.S. 205 (1975); Cohen v.

California 403 U.S 15 (1971).

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itself; he was arrested in the corridor for wearing a jacket displaying the words “Fuck the Draft.”

Cohen later recounted in an interview that a woman whom he had met the night before stenciled the phrase on his jacket, an event which he did not remember when getting dressed that

morning.¹³ Nonetheless, Cohen was arrested in violation of section 415 of the California Penal Code, which prohibited "maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person [by] offensive conduct," and sentenced to 30 days in jail.¹⁴

Cohen appealed the case to the Court of Appeals and ultimately to the Supreme Court,

“testifying that he wore the jacket knowing that the words were on the jacket as a means of informing the public of the depth of his feelings against the Vietnam War and the draft."¹⁵ Given that he did not intend to offend, Cohen argued, his act was a valid form of personal expression and the state of California had no right to prohibit it. The question before the Supreme Court, consequently, was whether the state of California could prohibit individuals from displaying potentially-offensive words in public. Justice Harlan delivered the opinion of the court. Harlan began by citing the Appeals Court’s account of the events “‘The defendant did not engage in, nor threaten to engage in, nor did anyone as the result of his conduct that in fact commit or threaten to commit any act of violence. The defendant did not make any loud or unusual noise, nor was there any evidence that he uttered any sound prior to his arrest.’" So given that Cohen was not deliberately attempting to harm or offend anyone, could his conduct be restricted on the basis that some found it offensive?

13 “Paul Robert Cohen and ‘his’ Famous Free-Speech Case.” Newseum Institute,

www.newseuminstitute.org/2016/05/04/paul-robert-cohen-and-his-famous-free-speech-case/.

14 Cohen v. California 403 U.S 15 (1971).

15 Cohen v. California 403 U.S 16 (1971).

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The Court answered in the negative, holding that “absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal offense.”¹⁶ Given that Cohen’s conduct was done in order to exercise his opinions on the draft (or so he claimed,) it qualified as an exercise of speech. While the “fighting words doctrine”

articulated in Chaplinsky v. New Hampshire held that foul language directed at someone was not protected by the First Amendment, the word “fuck,” in this case, was not directed at a particular person.¹⁷ Consequently, Harlan argued, the “Appellant's conviction…rests squarely upon his exercise of the "freedom of speech" protected from arbitrary governmental interference by the Constitution, and can be justified, if at all, only as a valid regulation of the manner in which he exercised that freedom, not as a permissible prohibition on the substantive message it

conveys.”¹⁸ Harlan here claimed that while the state of California could not restrict Cohen’s anti-draft message, it could regulate the time place and manner in which it could be displayed.

Anticipating this argument, the State of California also formulated a second argument: the law was not a restriction on speech but on where it was expressed; specifically, the state had an interest in protecting the sensibilities of “sensitive citizens” (such as women and children) in the Courthouse. But the Court rejected that the California statute was a valid place restriction, arguing that unlike residents confronted by “raucous emissions of sound trucks blaring outside their residences,” the persons in the Courthouse, if they found the word “fuck” to be offensive, could merely “avert their eyes.” Despite the potential offense felt by persons in the courtroom, Cohen’s right to display his message how, where, and when he wanted to could not be restricted.

16 Cohen v. California 403 U.S 22-26 (1971.)

17 Chaplinsky v. New Hampshire, 315 U.S. 568 (1942.)

18 Ibid, at 19.

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In a dissenting opinion, Justice Harry Blackmun (joined by Justices Burger and Black) argued that Cohen’s conduct was an “immature antic” and consequently qualified as mere

“conduct” rather than “speech.” Moreover, the dissenters refuted the majority’s contention that the case did not qualify under the “fighting words doctrine” established in Chaplinsky v. New Hampshire, arguing that “this Court's agonizing over First Amendment values seems misplaced and unnecessary.”¹⁹ Given that, according to the dissent, the word “fuck” qualified as a “fighting word,” Cohen’s display of it was not a form of speech protected under the First Amendment. The State of California had the right to restrict the word “fuck” to protect public sensibilities.

While Cohen later recounted that wearing the jacket was accidental and symptomatic of his having a “Ph.D in partying in those days,” his jacket spawned a landmark free speech decision. The enormity of the Court’s verdict cannot be overstated: insofar as Cohen’s behavior was not done with the intent to harm or offend, it was unconstitutional for the state of California to suppress his autonomy, even if others found it offensive. Moreover, the Court ruled that while governments can regulate the time, place, and manner of certain offensive actions (a premise in line with Permissive Liberalism,²⁰) the mere offense suffered by the sight of a foul word was not sufficient to justify restricting Cohen’s autonomy; it was not on Cohen to change his behavior but rather on the viewer, if they found Cohen’s message disturbing, to look away. This case redefined when governments could restrict offensive behavior in public. Cohen established that the offense suffered by a certain action, and a desire to protect community sensibilities, was not sufficient to curb autonomy.

19 Cohen at 27.

20 Michael Bayles, who accepts Feinberg’s “reasonableness” standard. Criteria three of evaluating reasonableness states that the greater the alternative opportunities for individuals to engage in the same behavior, the less reasonable. Feinberg, Joel, and Michael Bayles. "Third Symposium." In Issues in Law and Morality, (Cleveland:

The Press of Case Western Reserve University, 1973), 83-140

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But does the principle established in Cohen, that governments cannot always restrict actions on the basis of their offense alone, have limits? Cohen, after all, concerned an individual expressing a political message; does such a right also apply to potentially-offensive sights that are not politically-motivated? Moreover, does the same principle also apply to the display of offensive images? Stone raises this very question; “suppose above the words ‘fuck the draft’ on his jacket, Cohen had drawn an image of a naked man with an erect penis ‘fucking’ the director of the local draft board? Suppose he placed that image on a billboard.”²¹ The Court considered a similar issue in Erzodnik v. Jacksonville.²² The issue came to a head when a drive-in movie theater in Jacksonville, Florida was convicted of violating a local law making it a public nuisance (a punishable offense) for a drive-in movie theater to showcase films containing nudity if the screen was visible from the public street. The City of Jacksonville justified the law on the grounds that it prevented the sensibilities of un-consenting adults and minors. Richard Erzodnik, the manager of the University Drive-in Theater, was fined for showing a movie displaying female breasts and buttocks.

The question before the Court was whether the Jacksonville law banning the display of nude images was constitutional under the Fourteenth Amendment. Could the City of Jacksonville selectively ban the display of nude images on screens seen from the street? The constitutional stance at the time was that materials deemed obscene could be selectively restricted under state police power.²³ And three years prior to Erzodnik, the Court had redefined the definition of obscenity. In order for something to be obscene, the Court had to determine three things:

1. whether the average person, applying contemporary "community standards", would find that the work, taken as a whole, appeals to the prurient interest;

21 Stone, Sex and the Constitution, 316.

22 Erznodnik v. City of Jacksonville 422 U.S. 205 (1975)

23 Stone, Sex and the Constitution, 254

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2. whether the work depicts or describes, in an offensive way, sexual conduct or excretory functions, as specifically defined by applicable state law (the syllabus of the case mentions only sexual conduct, but excretory functions are explicitly mentioned on page 25 of the majority opinion); and

3. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.²⁴

Mere nudity, the Court held, did not qualify. While the respondents for the City of Jacksonville acknowledged such a fact, they nonetheless claimed that “any movie containing nudity which is visible from a public place may be suppressed as a nuisance.”²⁵ Specifically, the City of

Jacksonville attempted to justify the ordinance on the grounds that it protected the public from the offense felt by the sight of sexual organs. Second, they argued that the law protected minors on the street from the sight of sexual organs.²⁶ Finally, they argued that the regulation can be justified as a traffic regulation, since nude images may distract passing motorists. So even if nudity was not obscene, could the City of Jacksonville restrict the nude images on these grounds?

The Court ruled in the negative to all three questions. With respect to the first argument,

“that the nude image could be suppressed in order to protect the public from offense, the Court ruled that since nudity was not obscene, the City of Jacksonville discriminated against the nude image merely because it considered it more offensive than other images. Justice Powell,

speaking for the Court, explained that a number of freedom of speech cases, including Cohen, had dealt with the issue of when and where governments can restrict speech. As a principle, cities have a right to exercise time, place, and manner restrictions on particular acts. “But when the government, acting as censor, undertakes selectively to shield the public from some kinds of

24 Miller v. California, 413 U.S. at 24-25.

25 Erzodnik at 208.

26 Erzodnik at 213.

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speech on the ground that they are more offensive than others, the First Amendment strictly limits its power.”²⁷ Essentially, the City of Jacksonville applied an inconsistent rationale with respect to offense, selectively regulating certain offensive displays based on a prudential judgment. Since nudity itself was not obscene, it could not be prohibited, even to protect the public (including minors) from offense, merely on the grounds that it may offend some viewers.

Moreover, even if it could, the City of Jacksonville did nothing to restrict other images which might be offensive to viewers. The law singled out nudity which, since it was not obscene, could not be restricted in order to protect public sensibilities. Basing their ruling on the precedent established in Cohen, the Court held that individuals had a limited right to be protected from offensive images in public; and just like in Cohen, the Court ruled that if an individual felt offended by the nude image, it was their responsibility to “readily avert [their] eyes.”²⁸

The Court next addressed whether the regulation could nonetheless be upheld to protect minors from crude sights. The City of Jacksonville argued that “even though it cannot prohibit the display of films containing nudity to adults, the present ordinance is a reasonable means of protecting minors from this type of visual influence.” But the Court rejected this argument.

While the majority conceded that “states and municipalities may adopt more stringent controls on communicative materials available to youths than on those available to adults,” there are only specific circumstances under which governments can bar the public display of protected

materials to them.²⁹ In this case, the Court ruled, the restriction is broader than necessary; the ordinance did not prohibit sexually explicit nudity but rather all nudity regardless of purpose.

Since mere nudity was not obscene, it could not be restricted merely because the government

27 Erzodnik at 209.

28 Erzodnik at 208-212.

29 See Interstate Circuit, Inc. v. City of Dallas, 390 U. S. 676 (1968) and Rabeck v. New York, 391 U. S. 462 (1968).

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thought it best that children not see it. With respect to the third argument, that the restriction was justified as a traffic regulation, the majority argued that nothing in the text of the law indicated that it was designed as such. And even if it was, the ordinance is still unjustified insofar as it singles out nudity; many other sights displayed on a screen could be just as distracting to a passing motorist. The Court’s rejection of all three rationales reveals the majority’s argument that nudity could not be legally singled out.

Erzodnik established that absent a more compelling reason, states could not regulate where nudity is displayed merely because individuals found it offensive. While the Court accepted that displays of obscenity were not protected under the First Amendment and could be restricted under state police power, nudity itself was not obscene. Consequently, there was no reason to treat nudity as any less valuable than other content (which individuals might find offensive) displayed on a screen. Just like in Cohen, actions done in public, insofar as they are not directed at anyone, cannot be restricted in order to protect persons who might incidentally be offended by them.

Two separate dissenting opinions were filed. The first, written by Justices Burger and Rehnquist, argued that the restrictions were a valid function of state police power. Explicitly refuting the majority’s claim that passerby’s could merely “divert their gaze,” Burger wrote that

“the screen of a drive-in movie theater is a unique type of eye-catching display that can be highly intrusive and distracting.”³⁰ Given that nude images have a unique effect on the viewer and are difficult to ignore, governments have a legitimate interest in proscribing their display. Justice White, in his dissent, argued if the Court is willing to prohibit the display of nude images on said

30 Cohen at 222.

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grounds, then the Court must be prepared to allow public nudity, a step he was not prepared to take.

The ruling as a whole leaves open the question of whether public nudity is similarly protected under such a ruling. Perhaps one could such an argument: given that the sight of the body is not obscene, Feinberg’s housewife in the supermarket’s right to go unclothed cannot be restricted merely to protect the interests of those who might incidentally be offended.³¹ The housewife’s nudity is not aimed to offend anyone and consequently the state may not prohibit the sight of her body, which is not obscene, merely on the grounds that some might be offended by it. While one could make such a case, the Court has never applied Erzodnik to public nudity outright, and restricting public nudity remains a valid function of state police power (as we shall soon see.) Nonetheless, Justice White, in his dissent, raised the possibility that the precedent established in Erzodnik, might be interpreted in such a way; frustrated with the majority’s outline of the public sphere, Justice White protested that “If this broadside is to be taken literally, the State may not forbid ‘expressive’ nudity on the public streets, in the public parks, or any other public place, since other persons in those places at that time have a ‘limited privacy interest,’ and may merely look the other way.” Justice White’s comment speak to the potential implications of the Court’s rulings in the two aforementioned cases.

Public nudity aside, both Cohen and Erzodnik were massive transformations in the limits of state police power. While governments could once enact mandatory privacy restrictions in order to protect the sensibilities of individuals in public, the two cases rolled back the

understanding that individuals always had a right to be protected from sights which they found

31 Joel Feinberg, The Moral Limits of the Criminal Law Volume 2: Offense to Others (New York: Oxford University Press, 1987), 40.

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offensive. The burden of preventing offense to the public was no longer on the actor but on the viewer, who had the responsibility of “averting their eyes.” This definition of the public sphere’s limits would qualify under Permissive Liberalism, given that it does not allow actions to be restricted merely because they cause offense. The Court’s use of “obscenity” as a hard backstop for what can be restricted might be compared to Ellis’ “intrinsic offensiveness” standard or Bayles’ “reasonableness” standard. And like permissive liberals, the standard that the Court laid forth in Cohen in Erzodnik held that preventing offense did not necessarily justify curbing individual autonomy.